b. The Fifth Circuit’s Reading of Standard 4.33.3 in Lara II Is Seriously

Therefore, Is Neither Unconstitutionally Vague Nor Violative of Due Process................17

C. Lara Does Not Mandate Judgment In Favor of AMC on Its Stadium-Style Theater Complexes in Texas...........................................................................................................22

provided, in pertinent part, that wheelchair locations in assembly areas

shall be an integral part of any fixed seating plan and shall be dispersed throughout the seating area. They shall adjoin an accessible route that also serves as a means of egress in case of emergency and shall be located to provide lines of sight comparable to those for all viewing areas.

rule) (US SJ Opp. App., Ex. 15).

ADAAG – were written in such a way that the phrase “lines of sight” referred only to

obstruction. Nowhere do these historical sources discuss obstructions or, for that matter, any

other factor affecting the nature and quality of the “lines of sight” beyond the requirement that

there be comparability between the sight lines offered spectators who use wheelchairs and those

1 For the Court’s convenience, a compendium of the regulations and guidelines formingthe historical roots of Standard 4.33.3 is provided in Exhibits 9 - 18 of Plaintiff United States’Appendix In Opposition to AMC’s Motion for [Partial] Summary Judgment accompanying thismemorandum.

-3-offered to most other members of the audience. That is, while the phraseology changed slightly

over the years, these sources neither explained nor discussed their respective uses of the

comparable-lines-of-sight requirement in the text or preamble of any of the various documents,

either as proposals or final standards. Instead, the language appears simply to have been handed

down from one accessibility guideline to another. AMC thus cannot credibly claim that these

inaccuracies underlying AMC’s “compliance” argument, these matters will not be discussed at

length in this memorandum. However, a few examples will illustrate the dubious nature of

AMC’s “compliance” claims.

First, while AMC claims that the Fiedler litigation (and the United States’ amicus brief

therein) prompted it to place wheelchair locations at the front of its stadium-style theaters,

neither the United States nor the plaintiff in that action made any such argument.4 Rather, Mr.

3 AMC also cites to a speech given by a DOJ staff attorney (Mr. Joseph Russo) at a panelpresentation before a Florida ADA workshop in March 1997 as further “evidence” that theDepartment “was unable . . . to determine what § 4.33.3 required with respect to stadium styleauditoriums.” AMC SJ Mem. at 11. As with so many other aspects of AMC’s memorandum,this assertion is both misleading and factually mistaken. Review of the transcript for thisworkshop makes plain that, rather than professing ignorance regarding Standard 4.33.3, Mr.Russo was instead emphasizing the commonsense principle that he -- as a DOJ staff attorney --lacked authority to issue authoritative policy statements concerning the application of thisStandard to stadium-style movie theaters. See US SJ Opp. App., Ex. 23; US SJ Opp. Facts at 6-8; see also US SJ Affirm. Def. Mem at 7-8. 4 At issue in Fiedler was AMC’s placement of wheelchair seating at the back of eachtheater at the Avenue Grand Theater, a theater complex leased by AMC at Union Station inWashington, D.C.. See US SJ Affirm. Def. Mem at 21-23; see also Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35 (D.D.C. 1994). Defendant AMC filed a motion for summaryjudgment contending that the ADA was inapplicable to its leased theaters at Union Station, that,even if the ADA did apply, that it did not require “dispersed” wheelchair seating at the AvenueGrand Theater, and that the ADA did not require equivalent treatment of disabled patrons when

-6-Fiedler alleged in his complaint that all of the traditional, sloped-floor theaters at the AMC Union

Station theater complex in Washington, D.C. impermissibly relegated wheelchair patrons to the

back rows (or behind the back rows) of the theaters farthest from the screen, and that he “wished

to sit near the middle of the theater[s].” (Emphasis added.) See US SJ Opp. App., Ex. 19; US SJ

Opp. Facts at 2-3. Thus, contrary to AMC’s after-the-fact re-creation of history, AMC could not

have placed its wheelchair locations at the front of its stadium-style theaters as a result of

Fiedler. Instead, according to one former senior AMC official who helped develop the AMC

Second, while AMC alleges that the 1996 Arnold agreement caused AMC to modify its plans

for future stadium-style theaters so that wheelchair locations were no closer than the fourth row,

in numerous instances AMC simply inserted an “extra” row or two of seats at the very front of its

theaters in a cynical attempt to make it appear as if the wheelchair locations had been moved

farther back from the screen when, in fact, the distance between the wheelchair locations and the

screen never changed. See US SJ Opp. Facts at 6. In any event, the 1996 Arnold settlement

agreement was primarily concerned with dispersal and integration issues – rather than “lines of

sight” issues – since United Artists had not yet built any stadium-style theaters as of the date of

this agreement. See id. at 4-5.

doing so would present a “direct threat” to the health or safety of other patrons. See Fiedler, 871F. Supp at 36-37. With the permission of the court, the United States filed an amicus briefopposing AMC’s motion for summary judgment. Id. In this amicus brief, the United Statescontended that AMC’s Avenue Grand Theater was indeed subject to the ADA; that AMC wasrequired to provide more than one wheelchair seating location in theaters with more than 300seats; and that AMC had failed to demonstrate that seating patrons who use wheelchairs towardsthe front of the theater would constitute a “direct threat.” Id. at 37-40. The district court deniedAMC’s motion for summary judgment. See Fiedler, 871 F. Supp. at 40.

-7- Finally, supported only by the statements of AMC’s trial counsel, AMC alleges that “within

three months” of learning of the Department’s Lara amicus brief, AMC modified its design

criteria so that wheelchair spaces in future stadium-style theaters would be provided the same

vertical viewing angles as were provided to most of the general public in the stadium seating

section. See AMC SJ Mem. at 11. This contention is factually incorrect on two accounts. First,

AMC’s 30(b)(6) representative stated in deposition that he had “no idea” when AMC received a

copy of the Department’s Lara brief, and that he would have been the person at AMC to have

received the brief. See US SJ Opp. Facts at 13. Second, when AMC did eventually modify its

design criteria to expressly account for vertical viewing angles (though apparently not in

response to the Department’s Lara’s brief ), there was no effort made to ensure that wheelchair

patrons were afforded viewing angles that compared favorably with those offered to audience

members seated in the stadium section or to any patrons in the theater. Id.

Taken together, the cumulative weight of these factual inaccuracies and misstatements dooms

in the overwhelming majority of its stadium-style theaters -- despite a flood of complaints by

regardless of whether AMC violated the ADA through negligence or knowing discrimination, its

corporate decisionmaking relegated patrons who use wheelchairs to inferior seating locations at

-8-the vast majority of its stadium-style theaters, and the record suggests that these decisions had

nothing to do with guidance from the Department of Justice.

Indeed, perhaps the greatest irony of AMC’s “compliance” argument is that, prior to the

filing of this enforcement action, AMC understood and agreed that Standard 4.33.3's

comparability requirement referred to more than simply “obstructions.” That is, when litigating

the Fiedler case in January 1995, AMC confidently stated that the phrase “lines of sight” in

Standard 4.33.3 encompassed viewing angles:

Lines of sight for a patron in an auditorium are measured with reference to the horizontal and vertical angles of view the eye must encompass in seeing the screen. For vertical sight lines, the angular measurement extends from the horizontal line of sight vertically to the sight line directed to the top of the screen . . . It is self evident . . . that . . . . sight lines are steepest in the front and flatten out in moving to the rear[.]"

[AMC’s] Memorandum of Points and Authorities In Support of Motion for Order of Certification

they did not offer physically disabled patrons comparable lines of sight to the screen, in large part

due to excessive vertical viewing angles that caused these theaters to be “Headache City” for

disabled patrons. See US SJ Mem. at 16-17, 21. The Fifth Circuit reversed, holding that “we

cannot conclude that the phrase ‘lines of sight comparable’ requires anything more than that

5 Two district courts have subsequently followed Lara II and held that the phrase “linesof sight” in Standard 4.33.3 refers only to “obstructions.” See United States v. Cinemark USA,Inc., Case No. 1:99 CV-705 (N. D. Ohio Nov. 19, 2001), appeal docketed, No. 02-3100 (6th Cir.Jan. 24, 2002); Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., 142 F. Supp. 2d1293 (D. Or. 2001), appeal docketed, No. 01-35554 (9th Cir. June 13, 2001); see also AMC SJMem. at 8-9 (discussing Cinemark and Regal decisions). Because the Cinemark and Regalcourts largely adopted the Fifth Circuit’s reasoning from Lara II, these district court decisionswill not be separately addressed in this memorandum. It bears noting, however, that AMC’smemorandum incorrectly states that the Department appeared as amicus curiae in the Regalaction. Id. at 8. The United States neither appeared as an amicus in the Regal district courtaction, nor filed any briefs in that case.

“clustering” exception). As the D.C. Circuit cogently noted in Paralyzed Veterans when

deferring to the Department of Justice’s interpretation of Standard 4.33.3: “Once the [Access]

Board’s language was put out by the Department as its own regulation, it became, as the [ADA]

contemplates, the Justice Department’s and only the Justice Department’s responsibility.” 117

F.3d at 585.

At any rate, the Fifth Circuit mistakenly assumed that the Access Board does not interpret

Standard 4.33.3, as currently written, to encompass viewing angles. See Lara II, 207 F.3d at 788-

789. In fact, the Access Board has recognized that viewing angles are relevant in determining

whether lines of sight in stadium-style movie theaters are “comparable” for purposes of Standard

4.33.3. For example, the Board has explained that

[a]s stadium-style theaters are currently designed, patrons using wheelchair spaces are often relegated to a few rows of each auditorium, in the traditional sloped floor area near the screen. Due to the size and proximity of the screen, as well as other factors related to stadium-style design, patrons using wheelchair spaces are required to tilt their heads back at uncomfortable angles and to constantly move their heads from side to side to view the screen. They are afforded inferior lines of sight to the screen.

of sight” in assembly areas is not susceptible to a “one size fits all” approach.

The need for regulatory flexibility is especially important where, as here, the type of

assembly area at issue (stadium-style movie theaters) did not even come into vogue until years

after the promulgation of the challenged regulation. In addressing vagueness challenges, federal

courts have long recognized the balancing act faced by legislators and regulators when drafting

statutes and regulations – to make them precise enough to afford fair notice of the prohibited

conduct, yet broad enough to reach a variety of situations, many of which cannot be anticipated

at the time of drafting. As the Supreme Court stated when rejecting a vagueness challenge to

regulations governing the transportation of hazardous materials:

[F]ew words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions.

formula’”) (internal citation omitted).6

purpose of this provision collectively put AMC (and other regulated entities) on fair notice that

the phrase “comparable lines of sight” should be read as requiring a qualitative comparison as

between the views of the screen afforded patrons who use wheelchairs and most other members

of the movie audience. This is all that the Constitution requires. See Botosan, 216 F.3d at 836

(rejecting vagueness challenge to Title III of the ADA and its implementing regulations);

Pinnock, 844 F. Supp. at 579-84 (same).7

6 None of the vagueness cases cited by AMC in its summary judgment memorandumprove to the contrary. See AMC SJ Mem. at 9-10. In Chalmers v. City of Los Angeles, 762 F.2d753 (9th Cir. 1985), for example, the court was faced with a vagueness challenge to a localvending ordinance. Id. at 755-56. In finding the challenged ordinance violated due process, thecourt placed great weight on the fact that city officials had repeatedly given the plaintiff-appellant conflicting advice regarding the proper interpretation of an ordinance with “obviousambiguity.” Id. at 757-58. Here, by contrast, Standard 4.33.3 is neither marred by ambiguity norhas the Department issued conflicting guidance concerning the interpretation and application ofthis regulation to stadium-style movie theaters. See discussion supra pp. 5-9, 19-20. Similarly,AMC’s citation to Georgia Pacific Corp. v. O.S.H.R.C., 25 F.3d 999 (11th Cir. 1994) isinapposite because the due process challenge in that case concerned safety regulations imposingcivil penalties, a type of regulation that is subject to a higher level of scrutiny that purelycommercial or economic regulation such as Standard 4.33.3. See 25 F.3d at 1005-06; see alsodiscussion supra pp. 18-19. 7 In a last-ditch effort to salvage its due process claim, AMC devotes one sentence in thebody of its summary judgment memorandum arguing that “[a]t most, the Department’s 1998expansion of § 4.33.3 is entitled to prospective application only.” AMC SJ Mem. at 11. AMC’s

- 21 -C. Lara Does Not Mandate Judgment In Favor of AMC on Its Stadium-Style Theater Complexes in Texas

AMC also argues that, in light of the Fifth Circuit’s ruling in Lara II, summary judgment

should be entered with regard to its twelve stadium-style theater complexes located in the Fifth

Circuit irrespective of whether or not this Court agrees with the Lara II decision. See AMC SJ

half-hearted retroactivity argument is meritless. First, this retroactivity argument necessarily restson the assumption that the Department’s purported “1998 expansion” constituted final agencyaction with all the attendant procedural requirements set forth in the Administrative ProceduresAct (5 U.S.C. § 551 et. seq.) Yet this Court has already conclusively held that neither theDepartment’s Lara amicus brief filed in 1998, nor any other statements or guidance issued by theDepartment since the promulgation of Standard 4.33.3 in 1991 pursuant to notice-and-commentrulemaking, constituted “final agency action.” See US SJ Affirm. Def. Mem at 8-9. Second, inany event, AMC cannot credibly claim that it needed to read the Department’s Lara amicus briefin order to realize the inferiority of the wheelchair seating locations in its stadium-style theaters.That the openings of AMC’s stadium-style theater complexes were met with a storm of protestby disabled patrons, local building officials, and even some AMC officials, stands as powerfultestament that AMC was well aware of the problems with these theaters from the very beginningof the stadium-style theater revolution in 1995. See discussion supra pp. 8-9. Moreover, whenthe Department of Justice launched its investigation of AMC’s stadium-style theaters inNovember 1996, AMC was expressly informed that it was potentially in violation of the ADA forfailing to place wheelchair seating in the stadium section of its stadium-style movie theaters. SeeUS SJ Opp. App., Ex. 26.

the propriety of the Department’s interpretation of Standard 4.33.3's comparability requirement

as applied to all of AMC’s over 80 stadium-style movie theater complexes nationwide.

As a last-ditch effort to avoid providing its disabled movie patrons and their moviegoing

companions with comparable lines of sight, AMC now belatedly asserts that its stadium-style

theaters need not comply with Standard 4.33.3's comparable-lines-of-sight requirement because

these theaters fall within the “clustering” exception to this regulation. Standard 4.33.3's

“clustering” exception, however, is inapplicable to AMC’s stadium-style theaters and does not

afford AMC license to relegate patrons who use wheelchairs to seats with inferior lines of sight.

While Standard 4.33.3 generally mandates that wheelchair locations in assembly areas be

placed in such a way as to ensure that such locations are “an integral part of any fixed seating

plan” (the integration requirement), provide persons who use wheelchairs “lines of sight

comparable to those for members of the general public” (the comparability requirement), and are

dispersed when the seating capacity exceeds 300 persons (the dispersal requirement), a

8 Ironically, AMC cites Colby as the primary “support” for its novel theory that adecision issued by the Fifth Circuit is “controlling” in this action, at least with respect to itsstadium-style theater complexes located in that jurisdiction. AMC SJ Mem. at 12. Colby,however, provides no such support. Indeed, a careful reading of Colby reveals that this caseinstead stands for the more well-established principle that federal courts are not generally boundby the decisions of their sister circuits. As Colby noted: “[N]either this court nor the districtcourts of this circuit give the decisions of other courts of appeals [sic] automatic deference; werecognize that, within reason, the parties to cases before us are entitled to our independentjudgment.” 811 F.2d at 1123. Moreover, while Colby does acknowledge that some measure ofdeference (as opposed to automatic deference) may be appropriate in situations in whichdifferent outcomes would place a defendant under potentially inconsistent legal duties, the courtemphasized that such cases arise only when “cases in different circuits challenge the samepractice of the same defendant.” Id. at 1124 (emphasis added). As noted above, however, AMCwas not a party to the Lara litigation and thus can hardly be said to be facing inconsistent legalduties should this Court decline to follow the Fifth Circuits’s Lara II decision.

Disability Rights Section

Civil Rights Division U.S. Department of Justice Counsel for Plaintiff United States of America

- 26 - CERTIFICATE OF SERVICE

I hereby certify that on this __ day of November, 2002, true and correct copies ofMemorandum of Plaintiff United In Opposition to AMC’s Motion for [Partial] SummaryJudgment were served by Federal Express, postage pre-paid, on the following parties: